Citation Nr: 1025322
Decision Date: 07/07/10 Archive Date: 07/19/10
DOCKET NO. 05-38 950 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to an increased evaluation for degenerative
arthritis of the left knee, currently evaluated as 10 percent
disabling.
2. Entitlement to an increased evaluation for degenerative
arthritis of the right knee, currently evaluated as 10 percent
disabling.
3. Entitlement to a total disability rating based on individual
unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Elizabeth Jalley, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1975 to August 1978.
This case comes before the Board of Veterans' Appeals (Board) on
appeal from an August 2003 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Louisville,
Kentucky.
The issues on appeal were previously remanded by the Board in
September 2008 and were denied by a March 2009 Board decision.
The appellant subsequently filed an appeal with the United States
Court of Appeals for Veterans Claims (Court). While the case was
pending at the Court, the VA Office of General Counsel and the
appellant's attorney filed a joint motion for remand, requesting
that the Court vacate the Board's March 2009 decision and remand
the claims. In a May 2010 Order, the Court granted the joint
motion, vacating the Board's March 2009 decision and remanding
the claims to the Board for compliance with directives that were
specified by the joint motion.
The Board notes that its March 2009 decision had denied ratings
in excess of 10 percent for bilateral chondromalacia under
38 C.F.R. § 4.71a, Diagnostic Code 5257 (2009). It also granted
separate 10 percent ratings for degenerative arthritis of the
left and right knees, based on limitation of motion objectively
confirmed by pain, crepitus, and tenderness, under 38 C.F.R.
§ 4.71a, Diagnostic Code 5003 (2009). The joint motion for
remand expressly "does not challenge the Board's decision with
regard to the evaluation pursuant to DC 5257, but challenges the
denial of more than 10 percent ratings for [the Veteran's] knees
under limitation of motion." The Board has thus recharacterized
the issues on appeal to more accurately reflect that the Veteran
is challenging only the disability rating assigned for arthritis
with limitation of motion rather than the rating assigned for
chondromalacia based on instability.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
As noted above, the issues on appeal are entitlement to ratings
in excess of 10 percent for degenerative arthritis of the
bilateral knees with limitation of motion under Diagnostic Code
5003.
The joint motion for remand determined that the Board's March
2009 decision had been based on an inadequate examination.
Specifically, the joint motion cited the November 2008 VA
examination report as being inadequate because, "while the
examiner noted objective evidence of pain with active motion, he
failed to indicate if there was any additional limitation due to
pain on motion or at what point in the range of motion pain set
in."
The Board observes, in passing, that the November 2008 VA
examination report expressly states that there was no additional
limitation of motion following three repetitions of range of
motion. In light of the concerns raised in the JMR, however, the
Board finds that a remand is warranted in order to ascertain at
what point the Veteran experiences pain in his left and right
knee motions. (While the Veteran was given another VA
examination in December 2009, the resulting examination report
does not list the points in the range of motion at which pain
sets in.)
Additionally, in June 2010, the Veteran submitted a copy of a
letter from the Social Security Administration (SSA) notifying
the Veteran that he is entitled to monthly disability benefits
beginning in October 2008. There is no indication that VA had
prior knowledge of the Veteran's SSA benefits or has had the
opportunity to request his SSA records. On remand, the AMC
should attempt to obtain the Veteran's SSA records. See
Murincsak v. Derwinski, 2 Vet. App. 363, 370- 372 (1992)
(concluding VA has a duty to obtain SSA records when it has
actual notice that the Veteran was receiving SSA benefits).
Finally, the appellant's brief to the Court includes the express
contention that the Veteran is unable to work because of his
service-connected disabilities. The Veteran has therefore raised
the issue of a claim for TDIU. See Roberson v. Principi, 251
F.3d 1378, 1384 (Fed. Cir. 2001) (once a veteran submits evidence
of medical disability and additionally submits evidence of
unemployability, VA must consider total rating for compensation
based upon individual unemployability). The Court recently held
that a request for TDIU is not a separate claim for benefits, but
rather involves an attempt to obtain an appropriate rating for a
disability or disabilities, either as part of the initial
adjudication of a claim or, if a disability upon which
entitlement to TDIU is based has already been found to be service
connected, as part of a claim for increased compensation. Rice
v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or
the record reasonably raises the question of whether the Veteran
is unemployable due to the disability for which an increased
rating is sought, then part and parcel to that claim for an
increased rating is whether a total rating based on individual
unemployability as a result of that disability is warranted. Id.
at 455.
The law provides that a TDIU may be granted upon a showing that
the Veteran is unable to secure or follow a substantially gainful
occupation due solely to impairment resulting from his or her
service-connected disabilities. See 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2009). Consideration may
be given to a Veteran's level of education, special training, and
previous work experience in arriving at a conclusion, but not to
his or her age or the impairment caused by nonservice-connected
disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2009).
In this case, as noted above, the Veteran has clearly raised a
claim for TDIU. Furthermore, pursuant to the holding in Rice, a
claim for TDIU is not a separate claim for benefits, but rather
involves an attempt to obtain an appropriate rating for a
disability or disabilities, either as part of the initial
adjudication of a claim or as part of a claim for increased
compensation. Therefore, the Board finds that a remand is
necessary so that the agency of original jurisdiction can provide
appropriate notice on that aspect of the appeal.
Accordingly, the case is REMANDED for the following action:
1. Ensure VCAA compliance and afford the
Veteran the opportunity to submit additional
argument and evidence on the claim for TDIU.
2. Contact SSA and request any relevant
records from that agency that pertain to any
claim for benefits filed by the Veteran, to
include copies of any examinations arranged
by that agency, and any decisions rendered
with respect to the Veteran.
3. Arrange for the Veteran to undergo a VA
examination to determine the severity of his
service-connected degenerative arthritis of
the bilateral knees. The claims folders must
be thoroughly reviewed by the examiner in
connection with the examination, and a
complete history should be elicited directly
from the Veteran. Any tests and studies
deemed necessary by the examiner should be
conducted. All findings should be reported
in detail.
The examiner should describe all pertinent
symptomatology associated with the Veteran's
degenerative arthritis of the knees and
should provide the following information:
a. The examiner should specifically state
range of motion findings for both knees.
Range of motion findings should also
expressly state at what point in the range of
motion the Veteran's pain sets in.
b. The examiner should comment on whether
this disability exhibits weakened movement,
excess fatigability, or incoordination
attributable to the service-connected
disability. These determinations must be
expressed in terms of the degree of
additional range of motion that is lost due
to these symptoms.
c. The examiner should discuss whether pain
significantly limits functional ability
during flare-ups or following repeated use.
These determinations must also be expressed
in terms of the degree of additional range of
motion that is lost due to pain on use or
during flare-ups.
4. After the development requested above has
been completed, again review the record. If
any benefit sought on appeal remains denied,
the appellant and his representative should
be furnished a supplemental statement of the
case and given the opportunity to respond
thereto. Thereafter, the case should be
returned to the Board, if in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).